Thursday, July 02, 2009

Applicant Petroglyph Games won the identification-of-goods battle but lost the registration war regarding its mark BATTLECAM for "computer game software." In a rather odd ruling, the Board reversed the PTO's requirement that Petroglyph provide a new identification of goods. It then affirmed the Section 2(e)(1) refusal, finding the mark merely descriptive of a feature of game software. In re Petroglyph Games, Inc., 91 USPQ2d 1332 (TTAB 2009) [precedential].

Click on picture for larger image

Identification of goods: Examining Attorney Khanh M. Le contended that "computer game software" is an inaccurate identification because the specimen of use (above) shows the mark being used only for a feature of a computer game. [The word BATTLECAM with an adjacent "TM" appears near the row of blue lights toward the bottom of the specimen; click on the photo above to see a larger image of the specimen]. The Board, however, pointed out that the feature "remains, at bottom, computer code that allows the feature to be activated and used by or controlled by a player." It concluded that Applicant's identification of goods is acceptable:

Certainly the entire collection of code used for a particular game can aptly be referred to as "computer game software"; but we conclude that subsets of such code that would support only particular aspects or features of a game can also be accurately identified by such an identification.

Although it may be more accurate to refer to a game feature as "a feature of computer game software that allows users to ____ (specify function)," as the Examining Attorney suggested, "it would not be inaccurate to identify such software simply as computer game software."

And so the Board reversed the refusal to register based on Petroglyph's identification of goods.

Mere Descriptiveness: The Board found that "battle" is clearly "descriptive of computer games that feature battles as part of the game." Moreover, "it could not reasonably be argued that a game entitled STAR WARS EMPIRE AT WAR would not feature battles or combat of some type."

As to "cam," Petroglyph argued that the term is most likely to be perceived as an acronym for "computer-aided manufacturing" or a shortened version of "camshaft." It lamely argued that the term BATTLECAM is an incongruous composite having no obvious meaning:

"arguably the only relationship would be some form of entertainment between mechanics battling away at repairing cam shafts in a vehicle." *** "BATTLECAM might be descriptive or suggestive of a customized camshaft specifically designed for use by auto mechanics to obtain a competitive advantage in a racing or demolition derby setting."

The Board was not impressed. It found, based on the record, that "the function or feature within a game that allows a player to resort to alternative views of the playing field, elements thereof, or participants thereon, is referred to by players as a 'camera,' 'battle camera' or 'battlecam'; and the fact that such feature may not fit the dictionary definition of a camera is unimportant."

The Board had no hesitation or doubt that relevant purchasers will immediately understand BATTLECAM to describe a feature of computer game software.

TTABlog comment: I don't understand why the Board accepted Applicant's identification if the goods Petroglyph is offering comprise complete computer games. Was there any evidence that Applicant was offering only code (i.e., software) for a particular feature? If it sold entire games, the Examining Attorney's "a feature of computer game software that allows users to ____ (specify function)" seems appropriate. If Applicant was offering only the code for a particular feature, then "software for a computer game feature" seems appropriate.